Gregory J. Herbert v. Conner-Monceaux General Contractors

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 05-760

GREGORY J. HEBERT

VERSUS

CONNER-MONCEAUX GENERAL CONTRACTORS

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 03-05420
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

AFFIRMED.

Thomas Joseph Solari
Woodley, Williams Law Firm
P. O. Box 3731
Lake Charles, LA 70602-3731
(337) 433-6328
Counsel for Defendants/Appellees
Conner-Monceaux General Contractors
The Louisiana Workers’ Compensation Corporation

Kevin Louis Camel
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
Counsel for Plaintiff/Appellant
Gregory J. Hebert

EZELL, JUDGE.

The issue in this workers’ compensation case concerns the termination of Greg

Hebert’s benefits based on a finding by the workers’ compensation judge that Greg

and his wife Patricia made material misrepresentations in order to obtain payment for

attendant care services. Mr. Hebert claims Dr. James Perry’s testimony should not

have been admitted due to improper communication by the Louisiana Workers’

Compensation Corporation with Dr. Perry and the physical therapist. Without Dr.

Perry’s testimony, Mr. Hebert claims that there is no proof of fraud.

FACTS

Mr. Hebert was employed as a carpenter for Conner-Manceaux General

Contractor. While working on January 13, 2000, Mr. Hebert fell twenty-nine feet

from a roof sustaining injuries to his arms, legs, head, and back. Mr. Hebert suffered

multiple fractures of both legs and both arms and two separate fractures of his

vertebrae. He also suffered a traumatic brain injury. He was treated and stabilized

in Lake Charles by Dr. Perry, an orthopedic surgeon, and then sent to Houston for

specialized treatment of his ankle. On May 22, 2001, Mr. Hebert resumed follow-up

treatment in Lake Charles with Dr. Perry.

At that time, Mr. Hebert still had problems with his legs and some residual

problems with his back fracture. During the next several visits with Dr. Perry, Mr.

Hebert did not show much improvement. Mr. Hebert was always in a wheelchair on

his visits to Dr. Perry’s office.

On March 4, 2002, Dr. Perry wrote an order for attendant care because Mr.

Hebert was unable to care for all of his personal needs. Dr. Perry testified that Mrs.

Hebert requested the order and he complied because it was his understanding that Mr.

Hebert could not care for any of his own needs. As of June 25, 2002, Dr. Perry

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opined that Mr. Hebert had reached maximum medical improvement but that he still

suffered with some residual abnormalities from the fractures.

As a result of Dr. Perry’s order for attendant care, Mrs. Hebert was paid $5.15

an hour for ten hours a day, seven days a week by the Louisiana Workers’

Compensation Corporation (LWCC). It was decided that Mrs. Hebert would quit her

job with the Calcasieu Parish School Board as a cafeteria technician to take care of

her husband.

On August 16, 2002, Mrs. Hebert returned to her employment with the school

board. However, she continued to receive payment from the LWCC for the attendant

care services.

Around June 2002, the LWCC became suspicious that Mr. Hebert was

functioning better than his medical reports indicated. The LWCC began video

surveillance on Mr. Hebert, which lasted for a year. The video was shown to Dr.

Perry in addition to Rusty Eckels, a physical therapist who performed a functional

capacities evaluation on Mr. Hebert on June 3, 2003. Based on the video and the

meetings with these healthcare professionals, Mr. Hebert’s temporary total disability

benefits (TTD) were terminated on July 11, 2003. Attendant care benefits were last

paid on July 30, 2003.

On July 30, 2003, Mr. Hebert filed a disputed claim for compensation with the

Office of Workers’ Compensation. In April 2004, the LWCC filed a third-party

demand against Mrs. Hebert, in addition to filing a separate formal claim against Mrs.

Hebert. The two cases were consolidated.

Trial was held on October 13, 2004. The workers’ compensation judge (WCJ)

took the matter under advisement and issued oral reasons for judgment on December

13, 2004. The WCJ held that the Heberts violated La.R.S. 23:1208 by continuing to

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accept the attendant care payments after Mr. Hebert’s condition improved to the point

that he could drive and shop. The WCJ ordered restitution of all attendant care

payments made to Mrs. Hebert from July 18, 2002 to August 2, 2003, in the amount

of $18,746, and forfeiture of all benefits after July 12, 2003. The Heberts were also

ordered to pay $7,500 in investigation and litigation costs. Mr. Hebert appealed the

judgment.

IMPROPER COMMUNICATION WITH HEALTH CARE PROVIDERS

Mr. Hebert argues that the testimony of Dr. Perry and the surveillance video

should not have been admitted because representatives of the LWCC met with them

without any notice to him in violation of the health care provider-patient privilege of

La.Code Evid. art. 510. Mr. Hebert claims that the LWCC failed to meet its burden

of proof under La.R.S. 23:1208 without Dr. Perry’s testimony.

In June 2003, David Lorino, a claims specialist with the LWCC, and Fabian

Blache, also with the LWCC, met with Dr. Perry to show him the video. After

viewing the video, Dr. Perry ordered a functional capacity evaluation (FCE). The

FCE was performed by Mr. Eckels. Mr. Lorino and Mr. Blache then showed the

video to Mr. Eckels.

Louisiana Code of Evidence Article 510(A)(8)(a)(iv) provides that there is not

a confidential communication when there is a transmittal of information to “[a]

patient’s health care insurer, including any entity that provides indemnification to a

patient.” Comment (h) to Article 510 further provides that “[t]he phrase ‘health care

insurer’ in Paragraph (A)(8)(a)(iv) is broader than entities denominated as insurance

companies, and, as this Paragraph expressly states, includes any entity that provides

indemnification to patients, hence including self-insurers and government plans, etc.”

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In Farr v. Riscorp, 97-2164 (La.App. 4 Cir. 4/8/98), 714 So.2d 20, writ

denied, 98-1232 (La. 6/26/98), 719 So.2d 1058, the fourth circuit held that a workers’

compensation carrier met the definition of a health care insurer since it was statutorily

obligated to provide medical benefits to employees for on-the-job injuries. We agree

and find that Mr. Hebert is not protected by the health care provider-patient privilege

afforded by Article 510. Therefore, there was no confidential communication with

Dr. Perry and Mr. Eckels and we agree with the WCJ’s decision to admit the video

and Dr. Perry’s testimony.

FORFEITURE OF BENEFITS

Mr. Hebert argues that the WCJ erred in finding that he and his wife violated

La.R.S. 23:1208. He claims that the evidence is clear that he and his wife did not

make any misrepresentations with regard to his medical condition. The whole issue

surrounds the payment of attendant care benefits to Mrs. Hebert to care for Mr.

Hebert.

In finding that the Heberts committed fraud in continuing to accept attendant

care benefits the WCJ stated:

As earlier stated, L.W.C.C. agreed to pay Mrs. Hebert attendant
care payments because she had taken leave of absence from work and
was staying with her husband. Unbeknownst to L.W.C.C., Mrs. Hebert
returned to her employment for the Calcasieu Parish School Board on
August the 16th, 2002, a fact she apparently did not reveal until over a
year later. Instead, she continued to provide handwritten time sheets to
justify payments for her being a full-time caregiver for her husband at
a time when she was elsewhere.

The medical evidence certainly supports Mr. Hebert’s argument
that he probably cannot return to the type of physical work he has done
all his life. Dr. Mayes, his pain management physician, and Dr. Charles
Robinson, his psychiatrist, have not released him to return to any
employment. There’s no question that his 29-foot fall from a roof
during which he seriously injured most of his body has taken its toll.
But, that’s a given. This trial concerns whether or not he willfully
misrepresented his medical condition in order to get benefits. He
obviously was in much better condition than his treating physician

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thought he was. Is it fraud when a patient fails to inform his physician
of his improved circumstance? In the abstract, the answer is probably
not, if that’s all that happened. But, as I have said earlier, this is an
unique situation.

L.W.C.C. approved and paid for attendant services based on the
representation that Mr. Hebert was incapable of taking care of himself,
unable to perform even the most basic human tasks such as shaving and
bathing. L.W.C.C. did so at the request of Dr. Perry, the physician who
was most familiar with Mr. Hebert’s physical condition. The
incontrovertible fact is that long after Mr. Hebert progressed from being
for all practical purposes a semi-invalid to being able to drive and shop,
the Heberts continued to collect the money for paid attendant care. The
jurisprudence provides that inconsequential oversights and lapses in
memory might be a reasonable controversion of a fraud allegation, but
there’s nothing inconsequential about this situation. L.W.C.C. does not
argue that Mr. Hebert has somehow morphed into a state of wholeness
and wellness. It is recognized he still has problems. However, the
argument, succinctly paraphrased, is that the attendant care subsidy was
never intended to augment indemnity payments. It was not a bonus. It
was the payment for a medical treatment necessity. And long after the
need for the care ended, Mr. Hebert continued to take the money. Now,
that’s misrepresentation of the type described by provisions of Section
23:1208. I’m not suggesting that every action Mr. and Mrs. Hebert took
in the course of these three years was laced with fraudulent intent, but
improperly taking the attendant care money was. It would take a lot of
convincing to persuade me that L.W.C.C. and Dr. Perry, neither known
for exuberant and irrational liberality in matters of this sort, would have
ever recommended and paid for attendant care for the person I saw in
the video tapes.

In Resweber v. Haroil Construction Company, 94-2708, p.7 (La. 9/5/95), 660

So.2d 7, 12, the supreme court discussed application of La.R.S. 23:1208 as follows:

Section 1208 clearly applies to any willful false statements or
representations made “for the purpose of obtaining or defeating any
benefit or payment.” Section 1208 has no language limiting it to only
certain types of false statements, i.e., statements other than those relating
to prior injuries. The legislature has imposed no notice requirement in
Section 1208, apparently being of the opinion that any claimant should
be on notice that false statements made willfully for the purpose of
obtaining workers’ compensation benefits will not be tolerated and will
result in the forfeiture of those benefits. The only requirements for
forfeiture of benefits under Section 1208 are that (1) there is a false
statement or representation, (2) it is willfully made, and (3) it is made for
the purpose of obtaining or defeating any benefit or payment.

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Mrs. Hebert testified that her husband started driving when his mother died

because he got his mother’s car. Mr. Hebert’s mother died on July 25, 2002. She

went back to work on August 16, 2002, where she worked six hours a day. The FCE

was conducted by Mr. Eckels at Advanced Rehab Services. The FCE report indicates

that on the day of testing, June 4, 2003, Mr. Hebert “demonstrated crying and

verbalizations of ‘I can’t do anything’ and also strongly voiced ‘Why won’t ya’ll

leave me alone’”[.] The report indicates that the wife reported that this was an

average day for Mr. Hebert. It is also noted in the report that Mr. Hebert’s wife drove

him to the evaluation because he does not drive.

On June 9, 2003, Advanced Rehab Services called to check on Mr. Hebert.

Mrs. Hebert reported that Mr. Hebert had to stay in bed from Wednesday to Sunday

following the FCE. However, the video admitted into evidence indicates that the day

after the FCE testing, Mr. Hebert was driving around town running errands and

purchasing four, twelve-packs of drinks which he carried out and placed in his

vehicle by himself.

Dr. Perry saw Mr. Hebert twice after he reviewed the video, June 25 and July

8, 2003. On the July 8 visit, Mr. Hebert used a walker. Dr. Perry observed that Mr.

Hebert was able to walk well without much limp in the video. While Dr. Perry agreed

that Mr. Hebert does have some residual problems and is probably only able to

perform light-duty work, he opined that Mr. Hebert’s complaints in the office did not

fit with what he saw in the video. Dr. Perry testified that, based on what he saw in

the video, Mr. Hebert did not need attendant care. He explained that attendant care

is for someone who is severely impaired or critical and cannot care for any of his own

needs.

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Based on the trial testimony and evidence in the record, we cannot say that the

WCJ committed manifest error in finding that the Heberts violated La.R.S. 23:1208

by continuing to accept attendant care benefits and providing the health care

providers with information that Mr. Hebert was not able to do anything for himself.

There was a consistent pattern exaggerating and misleading health care providers

about Mr. Hebert’s problems and what he could do on a day-to-day basis.

INVESTIGATION AND LITIGATION COSTS

Mr. Hebert also claims the trial court erred in awarding the LWCC

investigation and litigation costs. He contends that La.R.S. 23:1208 does not provide

for cost shifting.

Louisiana Revised Statutes 23:1208(D) provides that restitution may be

awarded for “benefits claimed or payments obtained through fraud[.]” Furthermore,

La.R.S. 23:1208(C) defines “benefits claimed or payments obtained” to also include

“reasonable costs of investigation and litigation.” Therefore, investigation and

litigation expenses may be awarded as restitution. See Wood v. Brian Harris

Autoplex, 04-1316 (La.App. 1 Cir. 8/3/05), ___ So.2d ___.

CONSTITUTIONAL ISSUE

Mr. Hebert claims that the Office of Workers’ Compensation was enjoined

from adjudicating any claims or defenses under La.R.S. 23:1208 pursuant to the

Twenty-First Judicial District Court’s ruling in In re Melancon, Number 2004-

003200.

We first note that a constitutional issue decided by a city court, district court,

or appellate court is not binding on the courts of co-ordinate jurisdiction. City of

Shreveport v. Baylock, 107 So.2d 419 (La.1958). Furthermore, this court, in an en

banc decision, determined that the Office of Workers’ Compensation has subject-

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matter jurisdiction to adjudicate claims under La.R.S. 23:1208. Lanthier v. Family

Dollar Store, 02-429 (La.App. 3 Cir. 1/8/03), 848 So.2d 605. Therefore, we find that

this assignment of error has no merit.

For the reasons expressed in this opinion, we affirm the decision of the Office

of Workers’ Compensation. Costs of this appeal are assessed to Gregory Hebert.

AFFIRMED.

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